Twitter gives
Occupy protester's tweets to U.S. judge
Fri Sep 14, 2012 4:16pm EDT
* Messages under seal,
request for stay set for next week
* Protester arrested on
Brooklyn Bridge in October 2011
* Occupy movement set to
mark anniversary on Monday
By Joseph Ax
NEW YORK, Sept 14
(Reuters) - Twitter handed tweets from an Occupy Wall Street protester to a New
York criminal judge on Friday after months of fighting a subpoena from
prosecutors in a closely watched case pitting privacy and free speech advocates
against law enforcement.
The company surrendered
the micro-blogging posts - an inch-high stack of paper inside a mailing
envelope - to Manhattan Criminal Court Judge Matthew Sciarrino. They will
remain under seal while a request for a stay by the protester, Malcolm Harris,
is heard next week in a higher court.
Harris, 23, was one of
hundreds arrested during a mass protest on the Brooklyn Bridge in October 2011.
The Manhattan district attorney's office wants the tweets, which are no longer
available online, to try to undermine Harris' argument that police appeared to
lead protesters onto the bridge's roadway only to arrest them for obstructing
traffic.
Twitter and Harris had
challenged the subpoena but Sciarrino rejected their arguments in June. Twitter
has filed an appeal, which is scheduled to be heard in November.
The case involves a thorny
legal question that has rarely, if ever, been tackled by courts: whether
Twitter users have the right to go to court to fight requests from law
enforcement for their tweets.
Twitter and Harris argued
that Harris, as the author of the tweets in question, should have legal
standing to combat the subpoena. Twitter's terms of service make clear that
users have a proprietary interest in their records, according to the company's
appeal.
Sciarrino, however, has
said only Twitter can legally challenge a law enforcement request for tweets,
since it is the company, not the user, that owns the content in question. He
compared it to a subpoena of bank records, which courts have found cannot be
challenged by the account holder.
CONCERN FROM PRIVACY
ADVOCATES
The case has drawn
interest from privacy advocates, including the Electronic Frontier Foundation
(EFF) and the American Civil Liberties Union (ACLU), which have filed an amicus
brief in support of Twitter's appeal.
They are concerned the
ruling could set a precedent putting the onus on social media companies to try
to protect their users from criminal prosecution.
"It's what I would
call a canary-in-a-coal-mine case," said Marcia Hofmann, a lawyer with the
EFF. "I am concerned that companies will look at this case and say it's
not a good idea to push back against governments we think are overreaching.
That's troubling."
Twitter had faced a Friday
deadline to comply with the subpoena or face contempt and a heavy fine.
Aden Fine, an attorney
with the ACLU, said Friday's outcome demonstrates the importance of ensuring
that users, not companies, have the right to oppose subpoenas for their
content.
"Twitter should be
applauded for standing up for its users, but the unfortunate reality is that
only the individual users have sufficient incentives to defend their
constitutional rights," he said in an email.
While Sciarrino refused
Twitter's request to wait until after its appeal is heard, he urged the appeals
court not to deem the matter moot just because the tweets have been handed
over.
"I strongly encourage
the appellate court ... to decide the case on the merits, as I too agree that
this is a more important issue than maybe the trial itself," Sciarrino
said.
Harris' lawyer, Martin
Stolar, said he was disappointed that Twitter had handed over the messages but
vowed to continue to challenge the subpoena.
"We're not giving up
the fight here," he said following the court session, as Harris stood by
his side.
The district attorney's
office declined to comment on Friday's court hearing.
The surrender of Harris'
tweets comes as the Occupy movement prepares to mark its one-year anniversary
next week.
Activists in the movement,
which last fall sparked a national conversation about economic inequality and
coined the catch phrase "We are the 99 percent," aim to surround the
New York Stock Exchange and stage a sit-in on Monday.
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